Judicial retention elections may be on horizon as S.B. 656 passes

S.B. 656 eliminates judicial primaries in 2018, leaving open prospect of more changes

Senate Republicans sent strong signals with Thursday’s passage of the Electoral Freedom Act of 2017 that they may still scrap judicial elections in exchange for some form of merit selection for judges.

Senate Bill 656 is a wide-ranging electoral reform package now awaiting Gov. Roy Cooper’s signature. Its backers said it would eliminate the 2018 judicial primaries so lawmakers can methodically deliberate the best method to choose future judges.

“We as a body have been clear to what our intent was” in seeking an alternate way of selecting judges, Sen. Ralph Hise, R-Mitchell, primary sponsor of S.B. 656, said during floor debate.

He called the current system flawed because voters seldom know who the candidates are, and know even less about their positions, partly because they are barred from saying how they would rule on cases.

Hise raised the prospect of reviving a judicial retention system the General Assembly passed in 2015, saying a constitutional amendment would resolve any legal hurdles.

The state Supreme Court hasn’t ruled definitively on the concept, Hise said. It divided 3-3 on the legislation in May 2016, leaving in place a Court of Appealsdecision that said electing a Supreme Court justice on an up-or-down vote was unconstitutional.

Democrats complained they were blindsided by the 2018 primary cancellation, alleging it was partisan gamesmanship to protect the seat held by Republican Supreme Court Justice Barbara Jackson. Hise said there’s no political advantage to Republicans because Jackson is the only justice up for election, and Democrats could not lose their majority on the high court.

Rep. David Lewis, R-Harnett, defended canceling the judicial primary next year because it allows more time to work on legislation House Republicans are pushing.

Lewis said Republicans were criticized for trying to rush a decision onHouse Bill 717. It calls for redrawing the state’s judicial districts to reflect population and other changes since they were last mapped 60 years ago.

As a result of public hearings and input, bill authors made some changes to H.B. 717, and others could come when the Senate takes up the bill after the General Assembly returns for a January session, Lewis said. The Senate, which has been cool to the measure, adjourned late Thursday afternoon, several hours before the House passed the bill 69-43.

Canceling the primary would give candidates more time to get to know their new districts and not make hurried decisions for a February primary filing, Lewis said.

Senate Minority Leader Dan Blue, D-Wake, said the N.C. Bar Association has long supported merit selection of judges, but it may be difficult to persuade voters to give up their right to elect them. He cautioned Republicans to be careful in changing the system.

“You invite tyranny, and you invite a total disrespect for the law, and the rulings that come from the judicial branch” with reforms that appear to be partisan, Blue said. “You don’t suspend filings, and you don’t suspend elections” without undermining voter confidence.

“That’s just a crazy way, in my opinion, to elect a judge,” House Minority Leader Darren Jackson, D-Wake, said of canceling the primary and going straight to the election.

Rep. Marcia Morey, D-Durham, a former chief district court judge, said the bill “totally changes the way our judiciary will be voted on.” She asked whether it’s wise policy to elect a judge who likely would receive a small fraction of total votes in a crowded field.

The Senate voted 30-16 to pass S.B. 656, with Sen. Tamara Barringer, R-Wake, the only crossover vote. The House approved the bill, 70-44. Reps. John Blust, R-Guilford, and Larry Pittman, R-Cabarrus, voted against the bill. Reps. William Brisson, D-Bladen, and Elmer Floyd, D-Cumberland, voted with Republicans in favor of the bill.

Bipartisan State Board of Elections and Ethics Enforcement spokesman Patrick Gannon said legislative leadership didn’t consult with the board in drafting S.B. 656. He said there’s precedent for not holding a judicial primary. None was held for aSupreme Court race in 2004, aCourt of Appeals race in 2010, or aCourt of Appeals contest in 2014.

“We cannot recall any need in the recent past for multi-page ballots,” even when 19 candidates ran for the Court of Appeals seat in 2014, Gannon said. “That would be something new if it became necessary.”